Delhi District Court
Kamlesh vs Smt. Sudesh W/O Sh. Rajinder Kumar on 3 February, 2018
IN THE COURT OF MS. MANJUSHA WADHWA
ADJ 04 (WEST), TIS HAZARI COURTS, DELHI
Civ Dj No. 610787/16
Kamlesh
W/o Late Sh. Manmohan Pal,
R/o B3/215, Paschim Vihar,
Delhi110063 ........Plaintiff
versus
1.Smt. Sudesh W/o Sh. Rajinder Kumar
2. Smt. Sashi W/o Sh. Gurucharan Pal Both R/o E64, Moti Nagar, New Delhi.
3. Municipal Corporation of Delhi Through its Commissioner Civic Centre, Minto Road, Delhi ......Defendants Date of Filing Suit : 08.03.2013 Date of Transfer to this Court : 04.02.2016 Date of Reserving Judgment : 30.01.2018 Date of Judgment : 03.02.2018 J U D G M E N T
1. This is suit for declaration and permanent injunction filed by the plaintiff against the defendants.
Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 1 of 252. Succinctly put, facts of the case as per the plaintiff are that the plaintiff is coowner of the property bearing no. E64, Moti Nagar, New Delhi, measuring 300 Sq. Yds (hereinafter referred to as the suit property) alongwith the defendant nos.1 & 2 vide conveyance deed dated 29.11.2004 duly registered with the Sub Registrar, Janakpuri, New Delhi on dated 01.12.2004. The plaintiff and the defendant nos.1 & 2 are stated to be having 1/3rd share each in the suit property. The plaintiff pleaded that she filed a suit for permanent injunction against the defendant nos.1 & 2 wherein the defendant nos.1 & 2 alleged and disclosed on 11.01.2013 that the plaintiff had executed alleged relinquishment deed. According to the plaintiff, the defendant nos.1 & 2 in collusion with their husband and other family members had got executed the alleged relinquishment deed, by representing that the plaintiff is not in position to appear before the authorities, as such; they asked the plaintiff to execute power of attorney in their favour. The plaintiff pleaded that she signed the papers in good faith without any knowledge whether the document was relinquishment deed as alleged by the defendants in the written statement or any power of attorney in favour of the defendants.
3. According to the plaintiff, she neither intended nor executed the alleged relinquishment deed and was not aware that the defendants in collusion with their family members had got executed relinquishment deed by the plaintiff. It is her case that the defendants are ladies and in fact, the fraud had been calculated by the husband Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 2 of 25 of the defendant no. 2 and his son, who have signed the alleged relinquishment deed as witnesses. It is the case of the plaintiff that the defendant nos.1 & 2 have taken the wrong benefit of good faith of the plaintiff as the respective husband of the plaintiff and the defendant nos.1 & 2 are real brothers. The plaintiff further pleaded that at the relevant time, husband of the plaintiff remained in hospital as he had sustained brain hemorrhage in the month of August, 2007. It is further pleaded that earlier to August 2007, he was being medically treated and ultimately he expired after a long treatment and as such, the plaintiff was totally mentally disturbed and the husband of the defendant no. 2 took benefit of the situation and got executed the alleged relinquishment deed.
4. The plaintiff further pleaded that she did not receive even a single penny as alleged in the relinquishment deed and signed the alleged relinquishment deed in good faith upon believing that the attorney is being executed for representing before the concerned authorities. The plaintiff further pleaded that the defendants and other family members have exercised a calculated fraud in order to grab the share of the plaintiff by getting the relinquishment deed signed which is a bogus and sham document as never signed by the plaintiff as relinquishment deed, therefore, the alleged document is liable to be declared as null and void, illegal and not binding upon the plaintiff being a forged document. Hence, the plaintiff filed the present suit seeking decree of declaration, whereby declaring the alleged Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 3 of 25 relinquishment deed dated 29.06.2007 as null & void, illegal and not binding upon the plaintiff. The plaintiff also sought decree of permanent injunction against the defendants restraining the defendants from transferring, alienating or creating third party interest to the extent of 1/3rd share of the plaintiff in the suit property and also restraining the defendant no. 3/MCD from permitting any construction/reconstruction upon the suit property without any sanctioned plan.
5. Written statement was filed on behalf of the defendants' no. 1 & 2, whereby the defendants raised preliminary objection that the plaintiff has not properly valued the suit for the purposes of court fees and pecuniary jurisdiction. According to the defendants, the suit property is built up on the area of land measuring 250.83 Sq. mtrs and after applying circle rate of the area as Rs. 58,400/ in April, 2013, the total value of the suit property comes to Rs. 1,46,48,472/. It is further pleaded that the rate of construction being Rs. 7800/ per Sq. mtr on the basis of which, total value of the built up four floors comes to Rs. 2,05,18,128/ and thus, the plaintiff ought to have valued the suit for the purpose of of jurisdiction at the said amount and pay advaloram court fees accordingly.
6. The defendant nos.1 & 2 raised further preliminary objection that the present suit is hit by the provisions of Section 34 and 41(j)(h) of the Specific Relief Act, as such, the suit is liable to be dismissed with Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 4 of 25 cost. The defendants pleaded that the plaintiff has neither sought partition of the suit property nor sought possession, as such, suit for declaration and permanent injunction without seeking further relief is not maintainable and same is liable to be dismissed. The defendants also raised preliminary objection that the suit is barred by limitation as limitation for seeking declaration with regard to forgery of instrument is 3 years when the issue of registration becomes known to the plaintiff and in the instant case, the plaintiff was aware of registration of relinquishment deed dated 29.06.2007 since beginning. The defendants also raised preliminary injunction that the suit is barred by the provision of Order 2 Rule 2 of CPC as the plaintiff earlier filed suit No. 223/12 before the court of Ld. Additional Senior Civil Judge, Delhi which was withdrawn by her on 28.02.2013 after filing of written statement dated 10.01.2013 by the defendants.
7. On merits, the defendants pleaded that the suit property was jointly owned by the plaintiff and the defendants no. 1 & 2 vide sale deed dated 05.09.1988 on leasehold basis and they got the same converted into freehold vide registered conveyance deed dated 19.11.2004 and after conversion of the suit property from leasehold to freehold, the plaintiff released and relinquished her share for consideration vide registered relinquishment deed dated 29.06.2007 in favour of the defendant nos. 1 & 2 and after execution of the registered relinquishment deed, the plaintiff is not left with any right or claim Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 5 of 25 over the same.
8. The defendant nos.1 & 2 admitted that the suit property was being used for residential purpose by the defendants' no. 1 & 2 to the exclusion of the plaintiff. The defendant nos.1 & 2 pleaded that the plaintiff was residing in another property at the time of relinquishment of her rights in the suit property which is evident from the relinquishment deed as well as from the title of the suit. The defendant nos.1 & 2 denied that the relinquishment deed was obtained by them in collusion with each other and their family members by representing the same as power of attorney and the plaintiff signed in good faith. The defendant nos.1 & 2 denied that the plaintiff came to know of the execution of deed of relinquishment only on 11.01.2013.
9. According to the defendant nos.1 & 2, the plaintiff came to know of the relinquishment deed when she executed the same for consideration and the same was registered in the office of the Sub Registrar, Delhi, where she admitted the execution of Relinquishment Deed and was also photographed in the said office. The defendant nos.1 & 2 further pleaded that they had got sanctioned a building plan of the suit property in September, 2012 and demolished the existing construction on the ground floor and raised construction of ground floor, first floor, second floor and third floor along with stilt parking after obtaining approval from the Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 6 of 25 Corporation. It is also pleaded by the defendants nos. 1 & 2 that the second floor of the suit property has already been disposed of and the remaining suit property has been duly partitioned between them vide registered deed of partition dated 22.04.2013. It is thus prayed that the present suit is liable to be dismissed.
10.Written statement was also filed on behalf of the defendant no.
3/MCD, whereby it is pleaded that as per record, there is sanctioned building plan dated 11.09.2012 in respect of stilt, ground floor, first floor, second floor and third floor. It is also stated that the owner of the suit property raised deviation against the sanction building plan and the same was booked vide file dated 30.10.2013. The defendant no.3 pleaded that show cause notice had been issued and further action would be taken by the department after following due process of law as per DMC Act. The defendant no.3 prayed dismissal of suit on the plea that the suit is without cause of action against the defendant no.3 and not maintainable for want of statutory notice under Section 477/478 of DMC Act, 1957.
11. The learned Predecessor of this court initially framed the issues vide order dated 24.03.2015, however, vide order dated 10.11.2015, learned Predecessor of this court reframed the issues on the application filed under order 14 rule 5 CPC as under: (1) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, its effect ? OPD Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 7 of 25 (2) Whether the suit in present form is not maintainable in view of section 34 and sec 41(j) (h) of Specific Relief Act ? OPD (3) Whether the suit is barred by limitation ? OPD (4) Whether the plaintiff is entitled for decree of declaration as prayed for ? OPP (5) Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP (6) Relief
12. Plaintiff in order to prove the case has examined herself as PW1.
13. On the other hand, the defendant nos. 1 & 2 in order to prove their case have examined defendant no.1 as DW1, Sh. Gurcharan Pal Sodhi S/o Late Sh. Raghvir Chand Sodhi as DW2, Sh. Ajay S/o Sh. Roshan Lal as DW3 and Sh. Vivek Yadav, LDC from the office of Sub RegistrarII, Basai Dara Pur, New Delhi as DW4. Defendants in order to prove the case has relied upon the following documents as : S.No. Particulars of documents Exhibition of documents 1 Copy of Relinquishment Deed ExDW1/1 2 Certified copy of order dated ExDW1/4 28.02.2013 3 Copy of partition deed dated ExDW1/5 22.04.2013 Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 8 of 25 4 Copy of Sale deed dated ExDW1/6 and Ex DW1/7.
28.01.2013 and 22.04.2013 5 Certified copy of Notifications ExDW3/1 to Ex DW3/5 issued by Govt. of NCT of Delhi prescribing circle rates.
6 List of circle rates showing Ex.DW3/6 category of properties.
14. The issue wise finding is given in the succeeding paragraphs.
Issue No.1 : Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, if so, its effect ? OPD
15.The onus to prove this issue was on the defendants. Ld. Counsel for the defendant nos.1 & 2 submitted that the plaintiff has valued the suit as per the consideration amount stated in the relinquishment deed. He submitted that the plaintiff was required to value the suit at Rs.2,05,18,128/ for the purposes of court fees and jurisdiction and pay proper advoleram court fees on the same. It is his contention that in the absence of payment of appropriate court fees, suit is liable to be dismissed. He further submitted that the suit property is built on the area of land admeasuring 250.83 Sq. mtrs and circle rate in April, 2013 was Rs. 58,400/, meaning thereby, the total value of the land was Rs.1,46,48,472/ and on applying rate of construction as Rs.7800/ per sq. mtr, total value of suit property having four floors Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 9 of 25 comes to Rs. 2,05,18,128/ and the plaintiff was required to value the suit accordingly. He placed reliance on the judgment of Hon'ble High Court of Allahabad reported as 2013(SCC) online ALL 12894, titled as Rajender Prasad Yadav Vs. Ravindra Nath Singh.
16. Per contra, Ld. Counsel for the plaintiff submitted that the plaintiff has rightly valued the suit as per the consideration amount mentioned in the relinquishment deed.
17. Heard Ld. Counsels for the parties and perused the record.
18. The plaintiff has valued the suit for the purpose of court fees and jurisdiction at Rs. 3,30,130/ and paid requisite advaloram court fees on the same. According to the defendants, the plaintiff should have paid court fees on the market value of the suit property and not on the value as stated in the relinquishment deed.
19. The plaintiff in the instant case has sought decree of declaration, whereby declaring that the registered relinquishment deed dated 29.06.2007, Ex DW1/1 executed by the plaintiff in favour of the defendant nos.1 & 2 be declared as null & void, illegal, ineffective and not binding upon the plaintiff as well as sought decree of permanent injunction whereby restraining the defendants no. 1 & 2 permanently from transferring, alienating or creating third party interest to the extent of 1/3rd share of the plaintiff in the suit property and permanently restraining them from doing any Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 10 of 25 construction upon the suit property without any sanctioned site plan. In substance, the plaintiff has sought relief of declaration and permanent injunction. In this regard, it is relevant to refer to the judgment of Hon'ble Apex Court reported as 2010 AIR(SCC) 2807 titled as Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Ors., wherein the Hon'ble Apex court has considered the question with respect to the payment of court fees in regard to prayer for declaration that the sale deeds were void and not binding on the co parcenery and for consequential relief of joint possession and injunction. The relevant paragraphs 5 and 6 of the said judgment are reproduced as under: "5. Court fee in the State of Punjab is governed by the Court Fees Act, 1870 as amended in Punjab (`Act' for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of Rs.19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by section 7(iv)(c) of the Act which provides :
"7. Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :
(iv) in suits x x x x (c) for a declaratory decree and consequential relief. to obtain a declaratory decree or order, where consequential relief is prayed, x x x x x according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at which he values the relief sought:
Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 11 of 25Provided that minimum courtfee in each shall be thirteen rupees.
Provided further that in suits coming under subclause
(c), in cases where the relief sought is with reference to any property such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of this section."
The second proviso to section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause
(v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses
(a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.
6. Where the executant of a deed wants to be annulled, he has to seek cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or nonest, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to 'A' and 'B'
-two brothers. 'A' executes a sale deed in favour of 'C'. Subsequently 'A' wants to avoid the sale. 'A' has to sue for cancellation of the deed. On the other hand, if 'B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by 'A' is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as nonbinding. But the form is different and court fee is also different. If 'A', the executant of the deed, seeks cancellation of the deed, he has to pay advalorem court fee on the consideration stated in the sale deed. If 'B', who is a nonexecutant, is in possession and sues for a declaration that the deed is null or void and Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 12 of 25 does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if 'B', a nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided by provided for by clause(v) of Section 7."
20. The ratio of the aforesaid judgment passed by the Hon'ble Apex Court is that where the plaintiff is the executant of the deed and seeks its annulment, he has to seek cancellation of the deed, but where the plaintiff is non executant and seeks annulment of the deed, he has to seek declaration that the deed is invalid or not binding on him and if he is in possession, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if nonexecutant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an advalorem court fee as provided under Section 7(iv)(c) of the Act.
21.Adverting to the facts of the instant case, the plaintiff being the executant of the relinquishment deed ought to have filed suit for Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 13 of 25 cancellation of the deed whereas, the plaintiff has filed instant suit for declaration and permanent injunction. It is therefore held that no fault can be found with the affixation of the court fees at the value as stated in the relinquishment deed as the suit in form is the suit for declaration but in actual, is the suit seeking relief of cancellation of the relinquishment deed. This is also the ratio of the judgment of Hon'ble High Court of Delhi passed in CRP No. 129/2014 titled as Manoj Kumar Gupta Vs. Smt. Sheela Devi & Ors, decided on 02.09.2014. In view thereof, there is no merit in the contention of Ld. Counsel for the defendants no. 1 and 2 that the court fees ought to have been paid on the market value of the suit property and not on the amount as disclosed in the relinquishment deed. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Issue no.3: Whether the suit is barred by limitation ? OPD
22. The onus to prove this issue was on the defendants. Ld. counsel for the defendants no. 1 and 2 submitted that the plaintiff has admittedly appeared in person in the office of Sub Registrar and signed the Relinquishment Deed dated 29.06.2007, Ex. DW1/1 in favour of the defendant nos. 1 & 2 and thus, she had knowledge of the said Relinquishment Deed on the date of execution itself. He contended that Article 56 and 58 of Limitation Act provides period of three years for seeking declaration when the issue of registration become Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 14 of 25 known to the plaintiff or when the right to sue first accrues. It is his contention that the fact of registration of the Relinquishment Deed dated 29.06.2007 became known to the plaintiff in the year 2007 itself as the plaintiff appeared in person and signed the document as well as duly photographed in the office of Sub Registrar, as such, she cannot claim to have derived its knowledge on 11.01.2013 as averred by her in the plaint. He has drawn attention of this court to the cross examination of PW1 to the effect that she admitted the suggestion that Relinquishment Deed was executed in the year 2007. It is thus his submission that the suit is barred by limitation and warrants dismissal under Section 3 of the Limitation Act, 1963.
23. In response to the same, ld. counsel for the plaintiff submitted that the plaintiff filed the suit for permanent injunction against the defendants wherein the defendant nos.1 & 2 disclosed on 11.01.2013 that the plaintiff had executed a Relinquishment Deed in their favour. It is his contention that the plaintiff filed the present suit within three years from the date of knowledge of the alleged Relinquishment Deed, therefore, the present suit is within limitation.
24. Heard learned counsels for the parties and perused the record.
25. According to the plaintiff, the alleged Relinquishment Deed dated 29.06.2007, Ex.DW1/1 had been obtained by the defendants' no. 1 and 2 and their family members in collusion with each other by Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 15 of 25 representing that the plaintiff is not in position to appear before the authorities, as such, they asked the plaintiff to execute Power of Attorney in their favour. It is her further contention that she signed the papers in good faith without any knowledge whether the document was Relinquishment Deed or Power of Attorney in favour of the defendant nos.1 & 2. According to the plaintiff, she neither intended nor executed the alleged Relinquishment Deed dated 29.06.2007, Ex.DW1/1 and was not aware that the defendants in collusion with their family members had got executed the Relinquishment Deed. It is her further contention that she came to know about the alleged Relinquishment Deed dated 29.06.2007, Ex.DW1/1 only on 11.01.2013 in a suit for permanent injunction filed by her where the alleged Relinquishment Deed was given to her by the defendants.
26. In this regard, it is necessary to peruse the testimony of the plaintiff who appeared in the witness box as PW1. She admitted the suggestion that Relinquishment Deed was executed in the year 2007. Relevant portion of her crossexamination dated 01.06.2016 is as under : "... It is correct that the Relinquishment Deed in question was executed in the year 2007. It is incorrect that my husband left me at the office of the SubRegistrar when the Relinquishment Deed was executed. It is correct that the photographs of the parties to the deed and the witnesses were taken to the office of Subregistrar and we put our sign and thumb impressions. It is correct that the office of Sub registrar made inquiry at the time of registration of the Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 16 of 25 above said document. Vol. I was not asked about the nature of the documents. It is incorrect that I read the document before its execution and registration...".
27. The above said testimony of PW1 would show that the plaintiff had gone to the office of Sub Registrar on 29.06.2007 for the purpose of registration of the Relinquishment Deed, Ex.DW1/1, which as per PW1 is Power of Attorney. She further admitted that the office of Sub Registrar made inquiry at the time to registration of the document. The execution of the document has not been denied by the plaintiff. It was only the nature of document which is disputed by the plaintiff.
28. Article 59 of Schedule 1 of the Limitation Act stipulates the period of limitation as three years to cancel or set aside an instrument or decree or the rescission of a contract when the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded, became first known to him. In the instant case, it cannot be believed by any stretch of imagination that the plaintiff was not aware of the execution of registered relinquishment deed dated 29.06.2007, Ex DW1/1 till 11.01.2013, more so, when the plaintiff herself is signatory to the said relinquishment deed, Ex. DW1/1.
29. In view of the above, the present suit is barred by limitation as not filed within three years of the date of execution and registration of Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 17 of 25 Relinquishment Deed dated 29.06.2007, Ex. DW1/1.
Issue No. 2: Whether the suit in present form is not maintainable in view of section 34 and sec 41(j)(h) of Specific Relief Act ? OPD AND Issue No.4: Whether the plaintiff is entitled for decree of declaration as prayed for ? OPP AND Issue No.5: Whether the plaintiff is entitled for decree of permanent injunction as prayed for ? OPP
30. The onus to prove the issue no. 2 was on the defendants and issue nos. 4 & 5 was on the plaintiff. Ld. Counsel for the plaintiff submitted that the defendant nos.1 & 2 in connivance with their husband had exercised fraud upon the plaintiff as they neither informed the plaintiff nor her husband about the nature of the document. It is thus submitted that the plaintiff acted on the representation of the defendants and their respective husbands and the factum of alleged Relinquishment Deed was never discussed in the family of the plaintiff with her husband and her children. He contended that the plaintiff came to know about the Relinquishment Deed only on 11.01.2013 when the copy of same was supplied to the plaintiff in suit for permanent injunction. He also submitted that husband or children of the plaintiff were intentionally not made Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 18 of 25 witness to the Relinquishment Deed. It is also his submission that attesting witnesses to the relinquishment deed dated 29.05.2007, Ex DW1/1 are interested witnesses as Sh. Gurcharan Pal, attesting witness, examined as DW2, is husband of the defendant no.2 and similarly, Sh. Hemant Sandhu, second attesting witness to the Relinquishment Deed is son of Sh. Surender Kumar, real brother of Sh. Gurcharan Pal. He further submitted that there is material contradiction with regard to the alleged payment of Rs.3,30,000/ as DW1 and DW2 deposed that the amount was paid before the Sub Registrar whereas the Relinquishment Deed mentions that the said amount had already been paid. He thus submitted that the alleged Relinquishment Deed be declared as null & void and not binding upon the plaintiff.
31. In response to the same, ld. counsel for the defendants submitted that the plaintiff had relinquished her share in the suit property for a consideration of Rs.3,30,000/ and thus, the present suit is not maintainable. It is also his contention that the plaintiff has neither sought partition of the suit property nor possession of the suit property and therefore, suit for declaration of title without seeking consequential relief under Section 34 of the Specific Relief Act, 1963 is not maintainable. He further submitted that the present suit is also not maintainable under Section 41 (h) & (j) of the Specific Relief Act, 1963 as the plaintiff has already relinquished her share in the suit property for consideration and the same disentitles her to the Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 19 of 25 discretionary relief of declaration, as such, present suit is liable to be dismissed.
32. Heard learned counsel for the parties and perused the record.
33. The case of the plaintiff is that the so called Relinquishment Deed dated 29.01.2007, Ex.DW1/1 was obtained by the defendants no. 1 and 2 and their family members by collusion with each other by representing that the plaintiff is not in a position to appear before the authorities, as such, they asked the plaintiff to execute Power of Attorney in their favour. The plaintiff claimed to have signed the document in good faith without any knowledge whether the alleged document was Relinquishment Deed or any Power of Attorney in favour of the defendant nos.1 & 2.
34. Needless to say, the plaintiff has not denied her signature on the Relinquishment Deed dated 29.06.2007, Ex.DW1/1 but only denied the nature of the document. According to the plaintiff, she signed the document in good faith on the representation that she is signing Power of Attorney in favour of the defendant nos.1 & 2 so that she should not appear before any authority. The onus was on the plaintiff to establish that she had signed the relinquishment deed under misrepresentation of fact. The plaintiff has neither stated in the plaint nor in her affidavit in evidence as to where the said Power of Attorney was to be used by the defendants nos. 1 and 2. Simple Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 20 of 25 averment that the defendants' no. 1 and 2 got her signature on the document on the representation that the said document is Power of Attorney instead of Relinquishment Deed does not inspire any confidence. It is mandate of Section 92 of Indian Evidence Act, 1872 that terms of written document cannot be contradicted by oral evidence. Reliance in this regard is placed on the judgment of Hon'ble Apex Court reported as (2007) 7 SCC 104 titled as S. Sakival vs. M. Venu Gopal Pillai.
35. Further, perusal of cross examination of PW1 dated 01.06.2016 shows that she has admitted the execution of Relinquishment Deed in the year 2007. She also admitted that the office of Sub Registrar made inquiry at the time of registration of the Relinquishment Deed. She deposed during her cross examination dated 01.06.2016 that she did not obtain copy of the said deed from the office of Sub Registrar after its registration. She deposed that she did not write to the defendant nos.1 & 2 about clarification of the above document since June 2007 and before filing the earlier suit for injunction. Therefore, the contention of the plaintiff that she was not asked about the nature of the document is not sustainable. Even if it is assumed that the plaintiff was not asked about the nature of the document, it was for her to inquire about the same. The alleged ignorance of the plaintiff about the document, Ex.DW1/1 would not stand to her advantage. It is also not out of place to mention that the plaintiff admitted that she has not been residing in the suit property since 1981 and Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 21 of 25 therefore, it was incumbent on her part to inquire about the nature of the document signed by her on 29.06.2007 in the office of Sub Registrar. The plaintiff cannot be allowed to derive benefit of her own wrong.
36. The contention of the plaintiff that she was not asked about the nature of document is also incredible for the simple reason that she herself put signature and thumb impression on the document. It is also not out of place to mention here that PW1 admitted during her crossexamination that she has studied upto 10th class and she can sign in English but she cannot understand English. Even if it is assumed that she did not understand the contents of the document, it was for the plaintiff to satisfy herself about the nature of document before signing the same.
37. Ld. counsel for the defendants no. 1 and 2 has also referred to Section 32, 32A and 34 of the Registration Act, 1908 and submitted that the said provisions provide for personal appearance of the executant of the document, compulsory affixing of photographs and inquiry by registering officer and therefore, it does not lie in the mouth of the plaintiff to aver that she was not informed about the nature of the document in the office of Sub Registrar.
38. As per Section 34 (3) of Registration Act, 1908, Registering Officer is obligated to enquire whether or not such document was executed Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 22 of 25 by the persons by whom it purports to have been executed; satisfying himself as to the identity of the persons appearing before him and alleging that they have executed the document; and in the case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such person so to appear. It is not the case of the plaintiff that the registering officer did not enquire about the execution of the said document by her.
39. The next contention of the plaintiff is that the defendant nos.1 & 2 did not pay consideration amount. In this regard, ld. counsel for the plaintiff has drawn attention of this court to the contents of the Relinquishment Deed and the deposition of DW1 and DW2. It is his contention that DW1 has deposed that the amount mentioned in the Relinquishment Deed was paid in cash before the office of Sub Registrar, however, Relinquishment Deed dated 29.06.2007, Ex.DW1/1 stipulates that the plaintiff has already received an amount of Rs.3,30,000/ from the defendants in advance prior to execution of the Relinquishment Deed in respect of the suit property.
40. No doubt, there is contradiction about the place of payment of consideration amount of Rs.3,30,000/, same would not lead to the inference that the plaintiff has not received the said amount.
41.Moreover, the defendants have examined attesting witness, Sh.
Gurcharan Pal as DW2. DW2 denied the suggestion that he Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 23 of 25 disclosed the plaintiff that the Power of Attorney has to be registered on behalf of the plaintiff for conducting proceedings in the MCD and on this false representation, they got executed the Relinquishment Deed. The contention of ld counsel for the plaintiff that witnesses to the Relinquishment Deed are interested party would not infer that the Relinquishment Deed was obtained by playing fraud on the plaintiff.
42. Even if it is assumed that the plaintiff had signed the document on the pretext that the same is Power of Attorney, the plaintiff ought to have inquired about the use of the said Power of Attorney thereafter or obtained the copy of the Power of Attorney from the defendants which has admittedly not been done by the plaintiff.
43. In view of the above, the plaintiff has not been able to establish that the aforesaid Relinquishment Deed dated 29.01.2007; Ex.DW1/1 was obtained on false representation and by playing calculated fraud upon the plaintiff. Accordingly, it is held that the plaintiff is not entitled to decree of declaration and permanent injunction as prayed for. Issues no. 4 and 5 are decided against the plaintiff and in favour of the defendants.
44. Once it is held that the plaintiff is not entitled to relief of declaration, issue no.2 has become infructuous and is held accordingly.
Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 24 of 25Relief.
45. In view of the above, suit for declaration and permanent injunction filed by the plaintiff against the defendants is dismissed with no order as to costs. Decree sheet be prepared accordingly.
Announced in the open court (Manjusha Wadhwa) on 03rd February, 2018. Addl. District Judge04 (West) Tis Hazari Courts, Delhi Civ DJ No.610787/16 Smt. Kamlesh vs Smt. Sudesh & Ors. . Page 25 of 25